Purnell v Tianjin Noble Boats International Pty Ltd
[2016] QCAT 524
•25 May 2016
| CITATION: | Purnell v Tianjin Noble Boats International Pty Ltd [2016] QCAT 524 |
| PARTIES: | John Desmond Purnell (Applicant) |
| v | |
| Tianjin Noble Boats International Pty Ltd (Respondent) |
| APPLICATION NUMBER: | MCDT649-15 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 8 March 2016 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Mewing |
| DELIVERED ON: | 25 May 2016 |
| DELIVERED AT: | Southport |
ORDERS MADE: | 1. The Respondent’s name is amended to ‘Tianjian Noble Boats International Pty Ltd’. 2. The application is dismissed. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – CONSUMER DISPUTE – Where boat purchased from retailer – where boat had defects and mechanical problems – where boat taken to be repaired but not returned – whether manufacturer liable – whether retailer acted as agent for respondent Australian Consumer Law 2010 ss 3, 7, 54, 236, 259, 271(1) Blair v Curran (1939) 62 CLR 531 Johnson v Gore Wood and Co [2002] AC 1 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 |
APPEARANCES and REPRESENTATION:
| APPLICANT: | John Purnell |
| RESPONDENT: | James Lee, General Manager |
REASONS FOR DECISION
Background
John Purnell purchased a 3.3 metre rigid base inflatable boat with a 4hp, four stroke motor from GT Marine Services on 30 October 2014. Mr Purnell had first seen the boat at the Gold Coast International Boat Show on 18 October, where he met Mr Lee (for Noble Boats[1]) who, after discussing with Mr Purnell the features and attributes of that model of boat and quoting a price, directed him to GT Marine Services if he wished to purchase one. According to Mr Purnell and Mr Lee, GT Marine Services is (or was) a business independent of Noble Boats.
[1]Mr Purnell brought this claim against ‘Noble Boats International’. It was determined during the hearing that the proper name of the respondent entity is ‘Tianjin Noble Boats International Pty Ltd’. An order is made amending that name accordingly.
Mr Purnell test drove the boat and paid GT Marine Services for the boat and some accessories. The boat was delivered to Mr Purnell by GT Marine Services on 22 January 2015. On its first use the boat had engine problems which Mr Purnell reported to GT Marine Services. Mr Glenn Tripney, owner of GT Marine Services, attended to repair the problem. Mr Purnell said that over the next two months the boat continued to have problems, including deflation, delamination of the rigid base, and motor breakdowns. At one stage, Mr Tripney provided Mr Purnell with a ‘demo’ boat for a period while his boat was taken away to be repaired. According to Mr Purnell, the demo boat had similar problems.
On 28 March 2015 Mr Purnell first advised Mr Tripney that he wanted the boat fixed or his money back. On 16 April 2015 Mr Tripney took both Mr Purnell’s boat and the demo boat for what Mr Purnell understood to be “warranty claims” to be made to Noble Boats.
On 13 May 2015 Mr Purnell wrote to Mr Tripney stating that if a replacement boat wasn’t forthcoming by 30 June 2015 he wanted a full refund. Printouts of text messages tendered at the hearing by Mr Purnell purport to show that Mr Tripney was attempting to mediate a warranty claim between Mr Purnell and Noble Boats as of 29 May 2015.
By 6 June Mr Tripney stopped responding to Mr Purnell’s text messages, leaving Mr Purnell with no boat and no refund.
Mr Purnell applied to QCAT and was granted a payment order against Mr Tripney for $7,538.70 on 9 September 2015.[2] According to Mr Purnell, Mr Tripney has disappeared so he cannot get his money.
[2]Southport Claim MCDO455/15 - John Desmond Purnell v Glenn John Tripney. A review of the file for that matter shows that the amount claimed and points of claim in the action Mr Purnell brought against Mr Tripney are virtually identical to those made against Noble Boats in the present claim.
Mr Purnell now wants Noble Boats to pay him the $7,538.70, which comprises all money paid for the boat, accessories and improvements ($7,430.00), plus his QCAT filing fee of $108.70. Mr Purnell brought this claim as a Consumer Dispute. He says he should be able to claim from Noble Boats because Mr Tripney was its agent.
Mr Purnell’s application requires determination of the following issues:
a) Does Mr Purnell have a claim against Noble Boats under the Australian Consumer Law; and
b) Was Mr Tripney an agent of Noble boats and if so, does that entitle Mr Purnell to bring the present claim?
Application of the Australian Consumer Law
Mr Purnell’s claim involves a possible breach of the statutory guarantee as to acceptable quality under s 54 of the Australian Consumer Law (‘ACL’).
Mr Purnell is a ‘consumer’[3] and his claim apparently arises from failure to comply with the guarantee as to acceptable quality under s 54. I say apparently, as Mr Purnell’s evidence to the Tribunal that the boat was defective (and therefore did not comply with s 54) was oral, supported only by transcribed text messages, but nevertheless uncontested by Mr Lee. Mr Purnell’s ability to get a second opinion or provide photos to substantiate his claim is understandably thwarted by the fact that Mr Tripney has taken his boat, and I accept his oral evidence accordingly.
[3] Section 3, Australian Consumer Law.
Section 271(1) of the ACL allows an affected person to bring an action against a manufacturer to recover damages if the guarantee as to acceptable quality in s 54 is not complied with. The definition of ‘manufacturer’ in s 7 of the ACL includes a person who has caused their name or brand to be applied to goods. That is the case with the boat, which is noted as a “Noble 3.3m Rib” on the invoice from GT Marine Services. The other items and services Mr Purnell ordered are listed thus:
“Bimini to suit 3.3 M Rib
Locker For Noble 3.3m Rib
Suzuki 4 Hp Four Stroke Outboard, Secondhand [sic]
Supply And Fit Roller Tracks And Winch On site”
While Noble Boats does not appear to have been the manufacturer of the four items listed above, Mr Purnell may nevertheless be entitled to claim his outlay on these as damages arising from breach of the guarantee.[4] ‘Damages’ is compensation for loss suffered, with the intention of placing the applicant in the position he or she would have been had the legal wrong not occurred.[5] It is unlikely that Mr Purnell would have spent money on the bimini, lock, motor, roller tracks and winch if not for the purchase of that particular inflatable boat. These items would, in my view, be claimable as compensation if the breach of s 54 is otherwise made out.
[4] Sections 236, 259(4) ACL.
[5]Haines v Bendall (1991) 172 CLR 60; Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1.
The question arises as to whether Mr Purnell can obtain separate remedies for the same loss from both Mr Tripney and Noble Boats. The ACL does not expressly preclude a consumer seeking a remedy from both supplier and manufacturer. An Australian Government publication entitled The Australian Consumer Law – A Guide to Provisions offers the following guidance as to the relationship between s 259 (“Action against suppliers of goods”) and s 271(1) (“Action for damages against manufacturers of goods”):
Consumers purchase goods directly from suppliers and have only indirect dealings with manufacturers. Accordingly, the primary source of remedies under the statutory consumer guarantees would be suppliers. Consumers will be able to seek repairs, refunds or replacement goods from suppliers. Suppliers will be able to recoup any costs of providing those remedies from the manufacturers of goods. In certain circumstances, consumers will not be able to obtain a remedy from the supplier of goods. Examples of such circumstances include those whereby a supplier has become insolvent, is no longer in business or refuses to provide a remedy.[6]
[6] November 2010. At Table 5.6, p 53.
In that context, s 271(1) operates:
[t]o allow for circumstances whereby consumers need to seek a remedy directly from a manufacturer, [so] a consumer may recover damages from a manufacturer if goods are not of acceptable quality.[7]
[7] Ibid.
In other words, consumers may seek damages from the manufacturer when they cannot do so from the supplier.
In my view, the aggrieved consumer must elect whether to bring an action against the supplier, the manufacturer or both before commencing proceedings (or to add or substitute a respondent during proceedings if leave is granted). This view is supported by Rule 62(1) of the Uniform Civil Procedure Rules:[8]
[8]Which may be adopted by the Tribunal: s 28(3)(a) Queensland Civil and Administrative Tribunal Act 2009.
62 Necessary parties
(1) Each person whose presence is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in a proceeding must be included as a party to the proceeding.
If an applicant sues successive respondents in different proceedings there is the undesirable possibility of different courts reaching different conclusions on what is principally the same transaction.[9] There is public interest in finality of litigation.[10]
[9]Birtles v Commonwealth [1960] VR 247; cf Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, which held that once a judgement is entered, no further proceeding can be maintained on the same cause of action by the same parties.
[10] Ibid. Also, Johnson v Gore Wood and Co [2002] 2 AC 1.
Where an applicant brings a new respondent in a case where the amount claimed and facts are otherwise identical to a previously decided case, two questions arise: (1) was it unreasonable for the applicant not to join the new respondent to the original proceedings? And (2) is what the applicant seeks from the new respondent inconsistent with the decision in the previous claim? If the answer to either of these questions is “yes”, to proceed with the claim will be an abuse of process.[11]
[11]Rippon v Chilcotin Pty Limited [2001] NSWCA 142; Redowood v Link Market Services PtyLimited [2007] NSWCA 286; s 47 QCAT A1ct.
Was it unreasonable not to join Noble Boats to the prior claim?
Why Mr Purnell did not join Noble Boats as a respondent in the previous matter is unclear. Indeed, in a letter to Glenn Tripney copied to Noble Boats dated 1 July 2015, Mr Purnell wrote:
“… [U]nless a full refund or replacement of the boat and motor purchased from you in January 2015 has occurred within 7 days to my satisfaction, I will be commencing immediate legal action to receive the outstanding amount from you.
I will also be forwarding a copy of this letter to Noble Boats and will join them in any action going forward.”
Despite this, Mr Purnell did not join Noble Boats to the action against Mr Tripney. There was no reason given by Mr Purnell for not doing so and I can think of no legal obstacle. The evidence shows that Mr Purnell turned his mind to Noble Boats’ potential liability and threatened it with suit directly prior to filing his previous claim, but for a reason known only to him elected to claim only against Mr Tripney.
Accordingly, I find that the failure to join Noble Boats as a co-respondent in MCDO455/15 was unreasonable and it would be an abuse of process to proceed with the present claim.
Would an order against Noble Boats be inconsistent with the prior order against Glenn Tripney?
The objective of damages under the ACL is to return an aggrieved consumer to his or her original position. This implies that where an order for damages is made against a supplier that wholly remedies the aggrieved consumer’s loss, any further order for the same loss would be inconsistent with the prior award.
Mr Purnell has an order which, on its face, remedies his loss. I appreciate that it has been a hollow victory so far, but Mr Purnell provided no evidence to the Tribunal that he had attempted to enforce that order. He provided no evidence that Mr Tripney or GT Marine Services was insolvent or had gone out of business. There is some indication that Mr Tripney had, by his silence, either refused to provide a remedy or took an unreasonably long time to do so, but Mr Purnell pursued him rather than Noble Boats nonetheless.
Accordingly, I find that the order Mr Purnell seeks against Noble Boats would be inconsistent with the order in MCDO455/15, and it would be an abuse of process to proceed with the claim.
Was Glenn Tripney the agent of Noble Boats?
Mr Purnell told the Tribunal he believed he was entitled to bring this claim against Noble Boats because Mr Tripney was Noble Boats’ agent. I am of the view that this argument does not assist Mr Purnell’s claim for reasons that follow.
‘Agency’ is a word used in law to connote an authority or capacity in one person to create legal relations between a principal and third parties.[12] The authority to act as agent for a principal may be actual or apparent. Actual authority is clearly communicated to the third party, for example when a real estate agent clearly contracts on behalf of a vendor to sell property. Apparent authority will manifest from the appearances of the agent’s authority as displayed by actions of the principal, irrespective of any limits on the agent’s authority that could not be known by a person dealing with the agent.[13] In an agency arrangement, there is a contractual relationship between the principal and agent, and between the principal and third party. There is no contractual relationship between the agent and third party.
[12]International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co (1958) 100 CLR 644.
[13] Metal Manufacturers Ltd v Lewis (1988) 49 CLR 1.
The word ‘agent’ is a term commonly used without proper respect for its strict meaning. In Kennedy v De Trafford[14] Lord Herschell said:
“No word is more commonly and constantly abused than the word ‘agent’. A person may be spoken of as an ‘agent’, and no doubt in the popular sense of the word may properly said to be an ‘agent’. Although when it is attempted to suggest that he is an ‘agent’ under such circumstances as create the legal obligations attaching to agency that use of the word is only misleading.”
[14] [1887] AC 150.
The essence of Mr Lee’s submissions was that Noble Boats had no claim to answer because it had no contractual relationship with Mr Purnell. Mr Lee also initially referred to Mr Tripney as Noble Boats’ “agent” but I think he too used the term incorrectly.
There was no evidence before the Tribunal that Mr Tripney or GT Marine Services was the agent of Noble Boats. While Mr Purnell spoke with Mr Lee at the boat show prior to purchasing the boat, the sale transaction was negotiated and money paid to GT Marine Services. None of the documentation which effected the purchase of the boat indicates that GT Marine Services was anything more than a reseller of a boat made by Noble Boats. This does not impose liability on Noble Boats arising from agency as that term is understood in law.
If Mr Purnell’s agency suggestion was correct, he already has an order in his favour which he could enforce against Noble Boats on agency principles without need for the present claim. The consequence would be that Mr Purnell would be precluded from further pursuing this claim based on the well-established legal principle that a judicial determination directly involving an issue of fact or law disposes of the issue once and for all, so that it cannot afterwards be raised by the same parties or their related parties.[15]
[15] Blair v Curran (1939) 62 CLR 531, at p597.
Accordingly, I find that Mr Tripney was not the agent of Noble Boats in the sale to Mr Purnell. There is no entitlement to bring this claim against Noble Boats.
Orders
The Respondent’s name is amended to ‘Tianjin Noble Boats International Pty Ltd’.
The application is dismissed.
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